Wednesday, November 19, 2008

While there is a widely held belief that the more money you have the better you can expect to be treated in a courtroom, there is one area of the law that seems to turn that notion upside down.

In probate court cases, where judges appoint lawyers to serve as guardians of people who are found to be incapable of taking care of themselves or their business matters, the more money a person has the greater the risk of injustice, said local lawyer David Wukoson. And nowhere is that more true than in our local system, he said.

Wukoson: "You do not want to live in Harris County if you have money and become incapacitated."

At the behest of client and longtime friend J. Michael Epstein, who is a local businessman and president of RMS Lighting, Wukoson organized a team of lawyers that acquired and analyzed a tall stack of probate court records regarding judicial appointments and the fees paid to appointed probate lawyers.

The goal of Epstein and his legal team is to demonstrate to lawmakers in Austin that probate court reform is needed. Epstein spent tens of thousands of dollars in his reform efforts. What sparked him to take up the gauntlet and work to get probate laws improved was his mother's experience.

Going into probate she had an annual income of about $120,000, which should have been plenty to provide for her care but almost all her assets have been liquidated in order to pay the fees charged by the attorney appointed to serve as her guardian.

The Findings:

●Courts do not distribute appointments to attorneys outside of a very close-knit group of attorneys

●The practice allows former probate judges to serve as visiting probate judges in some cases and also to practice as appointed attorneys in other probate cases in the same courthouse

●Unreasonably high fees - Texas probate code currently says the guardian of an estate "is entitled to a fee of 5 percent of the gross income of the ward's estate and 5 percent of all money paid out of the estate." However, the code also allows a judge to "authorize reasonable compensation to a guardian" if the judge decides that 5 percent "is an unreasonably low amount."

●Fewer than one in 10 attorneys who handle guardianships were compensated according to that 5 percent rate

●When anyone makes a legal challenge regarding the handling of a probate estate, the court-appointed guardian benefits by adding more legal fees on his charges to the estate

John Robert “Bob” Bonner, 72, had died without a valid will in the spring of 2005 and left a fortune of millions of dollars. Bonner, an only child who was never married and childless, had been dead weeks at his home in the Gardens of Oak Hollow development before anyone noticed.

Bonner’s maternal aunt, who in January 2006 was ruled his sole heir.

Now allegations that her troubled granddaughter who effected the heirship has been bleeding her fortune and the Bonner estate of hundreds of thousands of dollars for personal benefit.

Michelle Valicek, a San Antonio criminal defense and family lawyer, eventually took over the administration of the Bonner estate in 2006 on behalf of her grandmother, Margaret Lorenz, 94, an aging but drifting beauty whose estate she also oversaw.

A judge stripped Valicek of these responsibilities after allegations of elderly abuse surfaced this spring in the form of a Texas Adult Protective Services investigation that was revealed in a letter to the court asking that a guardian be appointed for Lorenz. One was.

The allegations state that Valicek had taken out credit cards in Lorenz’s name, gifted $150,000 to other family members and had engaged in “exploitations” against Lorenz’s investments, “in excess of $400,000.

A court investigator wrote in a report to the court that one of the estate’s bank accounts that had $475,000 last July was depleted to $121,000 recently and that Valicek was spending at a rate of $25,000 a month off the Bonner fortune.

According to an inventory prepared for the court, Valicek used money from either the Bonner estate or her grandmother to purchase a $25,000 Lexus, a $13,500 Steinway baby grand piano, a pool table, a mansion, another house where her mother apparently was living, and to pay $20,000 in back child support for her younger brother.

The probe is ongoing. Valicek has invoked her Fifth Amendment right against self-incrimination in recent hearings. She faces the loss of her law license and the loss of her freedom.

Tuesday, November 18, 2008

A stunning family legal drama about a brave mother who defies the court to save her daughter from its "justice."

Rachel Belmore is a poised, determined, yet vulnerable advertising executive fighting to bar her charming former husband, Dr. Wesley Belmore, from molesting their five-year-old daughter, Ellie. Caught in a nightmarish justice system, Rachel’s odyssey takes a turn for the worse when she loses her battle in the court of Judge McGillian. The judge, a gregarious man who believes that he applies the law without prejudice, is nevertheless trapped in his biases, which throw him into the eye of a media storm.

His young, easy-going law clerk, Phil Crawford, hides a dark secret as he sets out on a mission to change the fate of children betrayed by the justice system. The compassionate Phil forces his way into Rachel’s plight, but fails to dissuade the Judge from his harsh viewing of her case.

To save Ellie, Rachel must take the law into her hands and suffer the consequences.

Against the backdrop of media frenzy, corporate indifference, political corruption, family treachery, terrorism and judicial callousness, the story unfolds in blazingly sure-penned prose to reveal loyalty, the kindness of strangers, devotion, passion, and friendship. In a riveting tale of surprising twists, Puppet Child is a moving tribute to a mother who remains dignified, honest and loving as she changes the rules.

I know that, where I work, guardianship is the very last option looked at, and it's very difficult to secure, usually requiring medical and psychological tests performed by professionals. We seek guardianship when a client is in dire need of protection; we do not seek to control the lives of those who are able to provide for themselves. Predators? Nazis? Please.

Would you rather we didn't exist so that real predators could just have their way with the elderly and disabled?

Guardianship Abuse Victim, NASGA Member:The fact that you are "amused" by the NASGA web site is perhaps an indication of the way elderly and disabled people are treated by APS and other official agencies.

You must have no idea of the pain and anguish, both mental and physical, that "wards" and their families endure, or you would never speak with such a condescending attitude. Your opinion of someone else's "dire need of protection" and that person and or family members opinion may be at opposite ends of the spectrum. The fact that you work for APS does not make your OPINION the correct one.

The "medical and psychological tests performed by professionals" are often very superficial, often do not take into consideration extenuating circumstances, and may be influenced by the desired result of the person (often wealthy) being put under guardianship for the purposes of estate looting. Maybe YOUR office does not do the terrible things you read about on the NASGA web site, but the members of NASGA will all vouch for the fact that others do. We would be very happy if there was no reason for NASGA to exist, but unfortunately there is, and it does.

Just what do you mean by "the real predators"? Many of the "real predators" are lawyers and court appointed guardians, fattening their coffers on the estates of their "wards". Our family's own experience cost over $300,000 in needless legal fees and court costs. The cost to us for my parents being separated for their 50th wedding anniversary, Dad's 80th birthday, and numerous family events and holidays can never be calculated- the time we lost is, as they say in the ad, "priceless". All thanks to a guardianship system that puts more value on the greed of lawyers and "professional opinions" than the right of a loving family to be together.

Any time you would like to debate the merits of guardianship, please let NASGA know. We would be more than happy to engage in a meaningful discussion, but please realize that there are real people, and very real pain behind the stories that amuse you.

Monday, November 17, 2008

S. 2838, the Fairness in Nursing Home Arbitration Act of 2008, is aimed at preventing nursing homes from forcing new patients to sign contracts agreeing to mandatory arbitration in the event of any disputes.

The legislation, introduced in April by Senator Herb Kohl (D-WI) and Senator Mel Martinez (R-FL), is a narrowly targeted measure that would protect nursing home residents, one of our nation’s most vulnerable populations, from losing the right to hold long-term care facilities accountable in court for negligent and abusive care.

Currently, many facilities require residents or their responsible family members to sign contracts that include pre-dispute mandatory arbitration agreements, meaning that any dispute between the resident and the facility will automatically be subject to arbitration.

By agreeing to the contract before a dispute ever arises, they are unwittingly signing away their constitutional right to have their case heard by an impartial judge or jury.

Additionally, arbitration agreements require that all parts of the legal process remain confidential. As a result, long-term care facilities are often not held publicly accountable for their substandard care.

Following is a list of those who testified. Click the names to read their presentations.

Claude Thomas married Susana Martinez Ramirez in 2001, but he kept it hidden from his adult children for at least two years.

When they finally found out, they were shocked. That shock turned to anger when his four children realized that most of his estate – and their inheritance – had vanished.

Now the children are asking an Ellis County family court judge to divorce the 45-year-old Mrs. Thomas from their 87-year-old father and award custody of the ailing man to one of his sons.

Mrs. Thomas' attorney said his client is entitled to Mr. Thomas' money because they're married. But his children say she is taking advantage of Mr. Thomas, spending his money on her own children and their father, Santiago Diaz.

At issue for the court is what's best for Mr. Thomas and whether he's capable of making his own decisions.

Mr. Thomas' children said they will fight to protect the family legacy. They estimate their father's estate was valued at as much as $1.5 million. It's now estimated at $165,000, according to court documents.

While Mr. Thomas' future is the subject of the guardianship case, the money is the chief issue in a separate civil case filed by the children against Mrs. Thomas. The initial court hearings in that case are pending.

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NASGA (National Association to STOP Guardian Abuse, Inc.) is a 501(c)(3) public-interest, civil rights organization formed by victims of unlawful and abusive guardianships and conservatorships. We seek legislative reform of existing law and upgrading of criminal penalties for court-appointed fiduciaries misusing protective proceedings for unjust enrichment and engaging in elder and family abuse.

Our mission is to promote the safety and well being of vulnerable persons subject to injury and damage in their person and property through unlawful and abusive guardianship and/or conservatorship proceedings; to end the growing violations of due process, civil and human rights; to work towards ultimate legislative reform of guardianship as presently practiced; upgrading of criminal penalties for court-appointed fiduciaries misusing protective proceedings for unjust enrichment; and to be a support organization for victims and their families. We carry out our mission through research, outreach, education and advocacy; and going forward, by alliance with community interest, law reform, civil rights and other advocacy organizations.

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